Thursday, February 07, 2013

A MAN jailed for life for murder for allegedly causing a fatal ulcer looks set to be cleared because of work by WA Nobel prize winner Barry Marshall and Malcolm McCusker .

Though three Supreme Court justices reserved their decision after a WA Court of Appeal hearing today, Director of Public Prosecutions Joe McGrath conceded that Chris von Deutschburg's appeal against his 30-year-old conviction should be allowed.

Mr von Deutschburg's lawyer Sam Vandongan told the court, he was "not trying to put pressure'' on the judges, but that his client had suffered because of his conviction for some time and therefore he hoped the decision could be made quickly.

Mr von Deutschburg was a homeless 18-year-old known as Christian Wilhelm Michael at the time of a house robbery in June 1983, when he scuffled with an elderly man who died of a bleeding duodenal ulcer seven days after the crime.

Last May, then WA attorney-general Christian Porter referred the case to the Court of Appeal after Prof Marshall -- who won the Nobel in 2005 with co-researcher Robin Warren for proving bacteria not stress caused most ulcers -- emphatically told the State Solicitor's Office that the injuries did not cause the ulcer or its bleeding.

This turned the prosecution's case on its head, because at the Supreme Court trial in December 1983, state pathologist Donald Hainsworth insisted 86-year-old Stavros Kakulas's condition was brought on by stress caused by the incident.

Prof Marshall wrote to the SSO in April 4, 2012, saying: "There is no likelihood that his (Mr Kakulas's) injuries either worsened or contributed to the duodenal ulcer in question''.

This was part of a petition for clemency first lodged in 2009 by law firm Mallesons Stephen Jaques, after it was settled by Mr McCusker, a QC who was acting for Mr von Deutschburg before Mr McCusker became Governor in July 2011.

Prof Marshall added in his submission to the SSO: "My answers do not necessarily depend on my opinion that the duodenal ulcer already existed before the assault on 1st June 1983. The duodenal ulcer may have existed before then or may have developed after 1st June 1983.

"Obviously a duodenal ulcer is a recurring condition and in 1983 the aetiology of these recurrences was completely unknown. Therefore persons with duodenal ulcer disease have ulcers coming and going throughout their life.

"The injuries sustained by Mr Kakulas did not contribute to the development, or accelerate the development of his duodenal ulcer."

The 1983 trial's former jury foreman, who cannot be named for legal reasons, told PerthNow last year that he believed the jury would have acquitted Mr von Deutschburg if anyone at the trial had suggested the bleeding ulcer could have been caused by something other than stress from the assault which had resulted in Mr Kakulas having bruising and fractured ribs, but that did not happen.

Mr von Deutschburg, 48, who now lives in Victoria, and who served seven years with hard labour before being released in 1990 on parole, said he hoped for a quick decision because he had been waiting years to "re-start'' his life.

"I am very appreciative to all the legal support over many, many years, including the now Governor Malcolm McCusker, who worked for well over four years on my case, my current senior counsel Sam Vandongan SC, Legal Aid, and Mallesons,'' he told PerthNow after the hearing.

"Also pivotally, Prof Marshall, has helped me with my case since 1985 and whose crucial scientific evidence opened up the prosecution case for review. I also want to thank The Sunday Times' Paul Lampathakis, who has been working on the case basically every day for the past seven years on all aspects of the case.''

A University of WA clinical professor of microbiology, Prof Marshall, told The Sunday Times in 2005, when the newspaper first started investigating the case, that he stood by an affidavit he wrote in 1986 when Mr von Deutschburg had previously considered appealing.

"As a result of my own research and findings . . . I strongly believe that all statements to the effect that the ulcer which caused Mr Kakulas's death was caused by stress are medically incorrect,'' he said in that document. He also said in 2005 that if the case were run now with a good legal defence, the outcome would likely be different.

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Dedication

In memory of Fatty Arbuckle, a good and innocent man whose movie career as a comedian was ruined by an opportunistic prosecution. The woman he was accused of murdering almost certainly died of natural causes. He was eventually cleared but the damage was done.

A thought

I love the Mae West story where some judge wearing a robe during the middle of the day, and seated in a high chair peered down and asked her, 'Are you showing contempt for my court?' To which she replied, 'I’m doing my best not to show it, your honor.' Maybe we need to give up trying to not show it."